April 2021 SDR – Voice for the Defense Vol. 50, No. 3

Voice for the Defense Volume 50, No. 3 Edition

Editor: Kyle Therrian

From Editor Kyle Therrian:

This month the Fourth District Court of Appeals gives us a pretty sweet work‑around to Governor Abbot’s unconstitutional GA‑13 executive order prohibiting PR bonds for indigent pretrial detainees. Be on the lookout for a future governor’s order abolishing the Fourth District Court of Appeals. And if you’ve ever tanked a jury selection, you’ll want to read this whole SDR to be sure another court wasn’t talking about your case when they said “[h]is presentation to the venire panel included what can be fairly characterized as a rambling and paranoid monologue unrelated to his case.”

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone.

Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided.

This publication is intended as a resource for the membership and I welcome feedback, comments, or suggestions: (972) 369‑0577.

Kyle Therrian

United States Supreme Court

The United States Supreme Court did not hand down any published opinions since the last Significant Decisions Report.

Fifth Circuit

Broadnax v. Lumpkin, 987 F.3d 400 (5th Cir. 2021)

Issue. (1) Do previously withheld notes suggesting that prosecutors targeted minority jurors for peremptory strikes constitute evidence that a federal court can consider for the first time in a federal habeas petition claiming that the state court unreasonably applied federal law? (2) Did the state court unreasonably apply federal law when it accepted race‑ neutral justifications for the State’s striking of every Black juror from the venire?

Facts. In Petitioner’s 2009 trial for capital murder, prosecutors used their peremptory strikes to remove all prospective Black jurors and one Hispanic juror. Petitioner objected under Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner exhausted his state remedies, and this case arises under federal post‑conviction remedies available to defendants who can show a state court unreasonably applied federal law. In this posture, the Petitioner attempted to submit new evidence – a juror spreadsheet created by prosecutors wherein prosecutors bolded the names of prospective Black jurors. Petitioner indicated that this piece of evidence was previously withheld as work product but disclosed when the district attorney revised policy. The federal district court refused to consider the new evidence based on precedent barring the consideration of evidence not before the state appellate court when a ruling was issued.

Holding. (1) No. A claim that a state court unreasonably applied federal law must be limited to the evidence presented in the state court. A narrow exception might exist which involves the consideration of previously withheld exculpatory evidence. The spreadsheet in this case does not pertain to guilt or innocence and was not exculpatory. Nor was the spreadsheet the type of “single, plainly momentous item of suppressed . . . evidence” which fundamentally alters a preexisting litigated claim to warrant consideration. (2) No. The prosecutors offered sufficient race‑neutral reasons, including a showing that they struck every person who opposed the death penalty, including each of the minority veniremembers. There were also several questionnaire responses by the minority veniremembers which made it “hardly surprising” that they were struck.

Comment. A prosecutor is definitely required to turn over his or her notes in a Batson hearing if the prosecutor uses those notes to refresh a recollection. And in light of the Michael Morton Act’s sweeping reforms to Texas criminal discovery practice since the time of Broadnax’s trial, it should be required even when the prosecutor does not use the notes for refreshing his or her recollection.

Texas Court of Criminal Appeals

In re State ex rel. Best, No. WR-29,923-01 (Tex. Crim. App. Feb. 3, 2021)

Issue. Can a trial court order the State to create audiovisual recordings of laboratory testing when it is known that the process of laboratory testing will consume the entirety of the evidence and render it unavailable for defense retesting?

Facts. Multiple defendants requested observation of State DNA testing which would result in the complete destruction of a DNA sample. The trial court ordered the State to create audiovisual recordings of the DNA testing process. The State argued: (1) that the trial court had no authority to do this, (2) that the defendant’s theory rests on a flawed premise that defendants have a constitutional right to discover and test biological material, and (3) that it could take more than a year to come up with an audiovisual recording system. The State filed the instant writs of mandamus and prohibition.

Holding. No. Texas Code of Criminal Procedure Article 38.43 grants trial courts some discretion to regulate pre‑trial DNA testing. However, neither Article 38.43, nor rules pertaining to criminal discovery authorize a trial court to order the State to create or generate evidence that does not already exist. The court analogizes this scenario to cases where the Court of Criminal Appeals previously held trial courts lacked authority to order the State to generate documentary evidence for purposes of discovery. In re Stormer, No. WR‑ 66, 865‑01 (Tex. Crim. App. June 20, 2007)(not designated for publication)(court may not order witness statements reduced to writing). A defendant’s remedy under the Code of Criminal Procedure is to obtain “any bench notes prepared by the laboratory that are related to the testing of evidence and the results of that testing. Tex. Code Crim. Proc. art. 38.43(k). Furthermore, “[t]here is no general constitutional right to discovery in a criminal case.” Evidence destruction does not present a due process concern until it is shown that the destroyed evidence is exculpatory. When evidence is only potentially exculpatory, “due process is implicated only when the State has destroyed that evidence in bad faith.”

Comment. The Court’s analysis is a sound application of Article 39.14 and Supreme Court precedent, but the outcome is not without dilemmas. Most notably, a criminal defendant has the right to inspect evidence upon a showing of good cause. Tex. Code Crim. Proc. art. 39.14. See McBride v. State, 838 S.W.2d 248 (Tex. Crim. App. 1992) (evidence of the drug itself is always indispensable to the prosecution in a drug possession case, and therefore the defendant always has good cause to demand inspection). Would this outcome be different if the trial court had ordered that the State permit a defense investigator to record the lab testing procedure? I bet a criminal defense lawyer could figure out how to make an audiovisual recording in less than the year‑or‑more it would take the State of Texas with their meager resources (as their classic “woe‑is‑me‑the‑government” argument suggested).

Wheeler v. State, No. PD-0388-19 (Tex. Crim. App. 2021)

Issue. When an officer fails to take an oath and swear to a probable cause affidavit, may the State rely on the good faith exception to Texas’s exclusionary rule to avoid suppression of evidence obtained pursuant to the resulting warrant?

Facts. The arresting officer in a DWI case signed a fill‑in‑ the‑blank blood warrant affidavit without swearing an oath. The arresting officer did not believe an oath was required under Pantego Police Department policy and had not sworn an oath in a single probable cause affidavit in his 14 months with that department. The arresting officer admitted learning about the US and Texas Constitutions and laws pertaining to searches and seizures in the police academy. The arresting officer admits he was trained in the academy to swear an oath before obtaining a search warrant. Defendant also called the magistrate who issued the warrant who testified that she failed to notice the supporting affidavit was unsworn. The trial court applied the good‑faith exception to Texas exclusionary rule (Article 38.23) and denied the motion to suppress.

Holding. Texas Code of Criminal Procedure Article 38.23 (Texas exclusionary rule) provides for an exception to exclusion of unlawfully obtained evidence—when evidence is “obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” This exception requires objective rather than subjective good faith. In other words, the good‑faith exception is not an exception for conduct that is close enough to constitutional. Here, “no objectively‑ reasonable officer would execute a search warrant knowing that it was procured through an unsworn probable‑cause affidavit.” “It is not too much to ask that the officer swear before another that he or she is telling the truth about the necessity of such a violative intrusion.” No objectively reasonable police officer would have believed the warrant in this case was valid absent a sworn affidavit. The requirement of an oath has existed for more than a century, it is codified numerous times by the Legislature, case law repeatedly emphasizes the requirement, officers are taught the necessity of an oath in the academy, and the particular form used by the arresting officer specifically called for an oath.

Dissent (Hervey, J.) The good‑faith exception is aimed at an evaluation of whether the officer was close enough to establishing probable cause in an affidavit, not aimed at the nuances of swearing an affidavit and obtaining the warrant. There is no question probable cause existed here. Policy considerations weigh in favor of upholding the warrant as well. “What happened was inadvertent. And if they were not before, Officer Bonner and his department are now well‑aware that probable‑cause affidavits must be sworn to, internal policy notwithstanding.”

Comment. Although the officer’s conduct was not sinister, what he did was not “inadvertent.” The officer testified it was his practice and his department policy to not swear affidavits. The dissent makes a valid point that the officer and his department likely learned their lessons ‑ but the point is a policy justification in favor of suppression, “[t] he rule is calculated to prevent, not to repair. Its purpose is to deter/to compel respect for the constitutional guaranty in the only effective available way‑by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960).

Woods v. State, No. PD-1085-20 (Tex. Crim. App. Feb. 10, 2021)(not designated for publication)

Issue. Where the sole issues raised in appellate briefing pertain to missing parts of the record, is an appellant denied a meaningful appeal when the missing record is filed post‑ briefing and appellant’s issues are determined moot?

Facts. The initial clerk’s record filed with the court of appeals omitted the court’s charge from guilt/innocence and the jury’s verdict. Counsel requested nonspecific supplementation in February of 2020. By June of 2020, the clerk had provided neither the court’s charge nor the jury’s verdict. Counsel then requested a more specific supplementation. Having not received supplementation by August, counsel filed a brief arguing for reversal on the basis of a missing record. Five days after counsel filed his brief, the clerk supplemented with the missing record. Counsel did not file any briefing after the clerk’s supplementation. The court of appeals held that the subsequent filing of the clerk’s record rendered the appellant’s issues moot. Appellant filed a pro se petition for discretionary review arguing he was denied a meaningful appeal.

Holding. Yes. Appellant was denied a meaningful appeal. “He was, at the very least, entitled to appellate counsel who would file an Anders brief.”

Comment. An Anders brief wasn’t merited at the time counsel filed his brief. Reversal is merited on the court’s uncertainty whether the post‑brief record was considered. But I don’t think the Rules of Appellate procedure have a literal solution to what happened here—perhaps an Anders‑esque reply brief.

Ex parte Barbee, No. WR-71, 070-03 (Tex. Crim. App. 2021)

Issue. (1) Does the Supreme Court’s opinion in McCoy v. Louisiana (holding a Sixth Amendment violation occurs when counsel concedes guilt at trial over defendant’s objection) provide a previously unavailable ground for relief justifying consideration of a subsequent post‑conviction writ of habeas corpus? (2) Where a defendant professes his innocence but does not expressly instruct counsel to pursue a strategy of innocence, has the Sixth Amendment been violated a la McCoy v. Louisiana?

Facts. This is a writ of habeas corpus following a previously litigated writ of habeas corpus (“subsequent writ”). Subsequent writs are prohibited absent an exception. Applicant alleges the exception of “previously unavailable legal basis” and specifically cites recent United States Supreme Court precedent McCoy v. Louisiana. 138 S.C.t 1500 (2018) (defendant has “autonomy to decide that the objective of the defense is to assert innocence” over counsel’s preference to concede guilt in an attempt to avoid the death penalty). In applicant’s case, evidence showed he confessed to the police that he murdered his pregnant girlfriend and her son. He then confessed to his wife that he was responsible for the deaths, but he caused them by accident. Then prior to trial he urged his counsel to pursue a theory of complete innocence, to blame a different person, and to argue that his statements were coerced. Trial counsel declined and maintained a defense of accidental death. Applicant did not testify at trial or object to defense strategy. Applicant had raised this complaint in previous writs under different legal theories prior to the 2018 McCoy opinion.

Holding. (1) No. A legal basis is not “previously unavailable” if it “could have been rationally fashioned from relevant precedent.” Applicant’s argument was previously available because the McCoy precedent is a logical extension of Florida v. Nixon, 543 U.S. 175 (2005). In Nixon, Nixon did not expressly object to his counsel’s concession strategy; he was unresponsive on trial strategy. In Nixon the Supreme Court found counsel’s concession strategy reasonable given this unresponsiveness and that a presumption of prejudice (structural error) would not be appropriate simply based on a defendant’s lack of consent to trial strategy. Nixon left open the possibility of a different result under different facts, and McCoy was the logical set of facts under which one would expect a different result. “McCoy was a logical extension of Nixon and could have been rationally fashioned from it.” (2) No. Applicant’s evidence is that he told his attorney and other various individuals that he did not want to plead guilty, that he was innocent, that someone else committed the murders. These facts don’t demonstrate that he “told them that his defensive strategy was to maintain his innocence at trial.”

Concurrence (Walker, J.). McCoy is not a logical extension of Nixon. McCoy created a previously unavailable grounds for relief. Nixon is an ineffective assistance of counsel case where the Supreme Court declined to find presumed harm under the Strickland standard for ineffectiveness. McCoy is not. McCoy involves Sixth Amendment right to defendant autonomy. However, Applicant has not satisfied the factual burden of showing that his autonomy was usurped.

Comment. The Court identifies major differences between McCoy’s insistence and applicant’s non‑insistence. McCoy opposed his counsel at every opportunity including in an outburst during opening statement. Applicant did not put up as much of a fight. McCoy’s counsel relieved the State of its burden early – in opening statement. Applicant’s counsel only relieved the State of its burden in closing argument. McCoy testified at trial and contradicted his attorney. Applicant did not testify. Despite identifying these differences, the court does not tell us what impact those facts might have in future cases.

1st District Houston

The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

2nd District Fort Worth

The Second District Court of Appeals in Fort Worth did not hand down any significant or published opinions since the last Significant Decisions Report.

3rd District Austin

Rucker v. State, No. 03-19-00493-CR (Tex. App.— Austin, Feb. 11, 2021)(not designated for publication)

Issue. When a defendant requests to proceed to trial pro se and a debate ensues where the defendant expresses both a desire for an attorney and a desire to proceed pro se, has he clearly and unequivocally waived his right to counsel?

Facts. Defendant was prosecuted for threatening imminent bodily injury and using a deadly weapon. Defendant, a “transient man” was involved in an altercation with other “transient individuals” behind a Jiffy Lube. When the attendant from Jiffy Lube called 911 and confronted defendant, he pulled out a knife and threatened her. At his arraignment, defendant informed the court that he and his attorney had irreconcilable differences arising from his filing of motions without informing him. Defendant indicated that he would be “happy to go pro se” but verbally sparred with the trial court about what this meant. Several exchanges between the defendant and trial court were a variation on the following:

[The court]: So, basically you want to represent yourself; is that correct?

[Rucker]: I am myself, Your Honor?

* * *

[Rucker]: It would appear to me that somebody would have to have a dissociative identity disorder or [have] multiple personality disorder for one of them to represent the other . . .

The trial court conducted a hearing under Faretta v. California to determine whether defendant knowingly and intelligently waived his right to counsel. Defendant continued with nonsensical debate, at times stating he wanted counsel, at others stating he didn’t. Following the hearing the State filed a suggestion of incompetence citing the defendant’s nonsensical ramblings. The record does not reflect that a competency evaluation or hearing was held. The trial court granted defendant’s request to represent himself and appointed standby counsel. Several weeks later, trial began. Defendant conducted voir dire himself. “His presentation to the venire panel included what can be fairly characterized as a rambling and paranoid monologue unrelated to his case . . . Rucker also called lawyers ‘scumbags’ and ‘weasels’ and characterized the judiciary as ‘corrupt,’ which offended several prospective jurors.” One juror remarked “this is a travesty” and another asked the trial court “[i]s there a process by which the Court goes through to deem whether someone is able to represent themselves?” Standby counsel moved for a mistrial and in the alternative another Faretta hearing after it became clear that defendant’s voir dire presentation irrevocably tainted the jury against him. A variation of the previous incoherent defendant‑judge sparring resulted. The trial court overruled standby counsel’s motion.

Holding. No. There is a strong presumption against the waiver of the right to representation by counsel. The waiver must be “clear and unequivocal.” Defendant did not clearly and unequivocally waive counsel. He indicated at times he would be happy to go pro se and at others he indicated that he wanted counsel—just not his current counsel. He declined to sign the waiver of counsel and in this context stated, “I’m not waiving my right to an attorney.” Albeit in confusing fashion, he indicated that he was incapable of representing himself as it would imply “a dissociative quality.”

Comment. “[Juror]: Is there a process by which the court goes through to deem whether someone is able to represent themselves?” The ultimate what‑the‑hell‑is‑going‑on‑here question. Convince me this person was not a criminal lawyer being passive aggressive.

4th District San Antonio

Ex parte Montes, No. 04-20-00337-CR (Tex. App.—San Antonio, Feb. 17, 2021)(not designated for publication)

Issue. Does Governor Abbot’s GA‑13 Executive Order prohibiting automatic release on personal bond under Article 17.151 (the State’s failure to indict or announce ready for trial after a specified period) also prohibit the trial court’s mandatory obligation to effectuate automatic release by reduced bail?

Facts. Defendant was confined for 90‑plus days pretrial without indictment and filed a pretrial writ of habeas corpus demanding a personal bond or reduced bond under Texas Code of Criminal Procedure Article 17.151. The trial court denied habeas relief on account of Governor Abbott’s GA‑ 13 Executive Order prohibiting automatic release of pretrial detainees who have not been indicted within the statutorily prescribed timeframe and cannot afford a bond during the pandemic.

Holding. No. Under Article 17.151, after a prescribed period of pretrial confinement during which the State has not presented an information, indictment, or announced ready for trial, “the trial court has only two options: it must either release the defendant on personal bond or reduce bail to an amount the defendant can make.” Executive Order GA‑ 13 provides in relevant part:

Article 17.151 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.

GA‑13 only suspends the automatic personal bond requirements of Article 17.151. GA‑13 does not suspend the trial court’s second option of automatic release under the statute “by reducing the amount of bail required.” The trial court erred by failing to reduce bond to an amount that the defendant could post.

Comment. Executive Order GA‑13 is unconstitutional. The Governor is prohibited from suspending statutes under the Texas Constitution. Tex. Const. Art. 1 Sec. 28. Although this argument was not raised here, this case provides a nice escape hatch for judges who, based on extraneous calculations, won’t tell the Governor what he needs to hear.

5th District Dallas

The Fifth District Court of Appeals in Dallas did not hand down any significant or published opinions since the last Significant Decisions Report.

6th District Texarkana

The Sixth District Court of Appeals in Texarkana did not hand down any significant or published opinions since the last Significant Decisions Report.

7th District Amarillo

Ex parte Rinehart, No. 07-20-00219-CR (Tex. App.— Amarillo, 2021)

Issue. (1) When a defendant is convicted of a state jail felony offense, but he is enhanced to a third‑degree sentence range as a habitual offender, does the five‑year maximum on probation sentencing for state jail felony offenses apply? (2) Does a trial court have jurisdiction to fix a perceived erroneous probation sentence years after it was entered?

Facts. Defendant pleaded guilty to burglary of a building and pleaded true to two allegations of prior felony convictions. The trial court sentenced him to ten years’ incarceration suspended for ten years of probation. During his period of supervision, Defendant filed a writ of habeas corpus arguing his sentence was illegal. He argued he was subject to a five‑year maximum period of supervision (maximum supervision period for state jail felonies under Title 7 of the Penal Code). The State initially agreed, and the trial court reformed the sentence to five years of supervision. Premised on this perceived error in sentencing, defendant then filed a second writ of habeas corpus challenging the voluntariness of his previous plea.

Holding. (1) No. The defendant, the State, and the trial court were incorrect to conclude that the maximum sentence of probation in defendant’s case was five years. The state jail felony “Burglary of a Building” is a State Jail Felony for which the maximum probation period is five years. But the Penal Code enhancement for habitual state jail felony offenders elevates the offense from a state jail felony to a third‑degree felony and is therefore not subject to a five‑year maximum probation period as “third degree felony under Title 7, Penal Code” under the Code of Criminal Procedure Article 42.053(d)(2). (2) Who knows but there is no harm in the trial court reducing the length of probation, so crisis averted.

Comment. The court’s opinion indicates that there does not appear to be any case law or authority analyzing this odd jurisdictional question – where the trial court reduces a sentence of probation erroneously believing the reduction was necessary to cure an illegal sentence. But the Code of Criminal Procedure provides some analogous authority. Texas Code of Criminal Procedure 42A.701 permits the reduction or termination of the period of supervision after one‑third or two years of the original community supervision period is satisfied. That is sort of what the trial court did here, but for the wrong reasons.

8th District El Paso

The Eighth District Court of Appeals in El Paso did not hand down any significant or published opinions since the last Significant Decisions Report.

9th District Beaumont

The Ninth District Court of Appeals in Beaumont did not hand down any significant or published opinions since the last Significant Decisions Report.

10th District Waco

In re Alvarez, No. 10-17-00426-CR (Tex. App.—Waco, Feb. 3, 2021)(not designated for publication)

Issue. Did the legislature create a non‑discretionary ministerial obligation under the Government Code by using the word “shall” in the following sentence: “[i]f an objection is made to the amount of the transcript fee, the judge shall determine a reasonable fee?”

Facts. After an open plea of guilt (guilty plea with no punishment agreement), relator was convicted and sentenced to 30 years. To substantiate her grounds for a writ of habeas corpus she: (1) requested a free transcript, and (2) demanded a hearing under Tex. Gov’t Code § 52.047(b) by which the trial court could determine a reasonable fee. The trial court declined to hold the mandatory hearing and instead sent a letter telling her that transcripts for meritless appeals are too expensive for taxpayers. The court of appeals entered an initial panel opinion which rejected mandamus relief and cited the lack of a right to a free transcript in habeas proceedings. Relator moved for en banc reconsideration indicating the panel had misinterpreted her request—that she merely wanted the hearing mandated by the Government Code. En Banc rehearing was granted.

Holding. Does not address the issue raised on appeal. The initial panel opinion denied relief based on precedent denying the right to free transcripts to indigent habeas litigants. The court granted en banc reconsideration when relator clarified her demand—a demand for a mandated hearing under the Government Code. The court requested briefing from the State and the trial court, but both declined. Citing only the State’s and trial court’s failures to brief the matter, the court substituted an en banc opinion summarily denying relator’s mandamus petition.

Dissent (Gray, C.J.). The mandamus proceeding does not request the court to declare a right to a free transcript. The relief requested is an order that the trial court hold the hearing on determination of a reasonable fee. The Government Code imposes this ministerial obligation on the trial court. The trial court refused to hold a hearing and instead wrote a letter to the defendant indicating that the claims she wishes to investigate are meritless and the taxpayers shouldn’t have to pay for her investigation. Mandamus should issue and the court should compel the trial court to perform its ministerial duty to hold a hearing.

Comment. Well, this is a travesty. At least the taxpayers are avoiding the rampant and unmitigated cost of court transcripts in Hill County.

11th District Eastland

Barron v. State, No. 11-18-00324-CR (Tex. App.— Eastland, 2021)

Issue. (1) Is a jury compelled to accept unrebutted but self‑serving evidence of self‑defense? (2) Does a trial judge violate a due process when, in the presence of the jury, he repeatedly expresses displeasure with defense counsel, accuses counsel of improper tactics, admonishes counsel that his questions are irrelevant, accuses counsel of violating the law, makes disapproving facial expressions during defense examinations, accuses counsel of “misdirect[ing] or misguide[ing] the court,” encourages the State to object, and raises its own objections to defense evidence? (3) When the defendant admitted drug use, did the trial court err in admitting evidence of a hidden drug safe in a murder trial? (4) Did the trial court improperly exclude evidence that the defendant’s victims committed prior robberies similar to the one he describes as a predicate for acting in self‑defense?

Facts. Defendant was tried for the murder of two individuals. The jury acquitted defendant on one count and convicted and sentenced him to two years on the other (with a finding of sudden passion). According to defendant and his wife, the victims came to their door at 4:00 AM wearing ski masks and attempted to burglarize them. Defendant attacked and killed one of the victims with a knife, then, with that victim’s gun, he shot the other victim who was engaged in a struggle with defendant’s wife. Defendant’s houseguest corroborated these events. But then defendant and his wife concealed the bodies under the trailer and hid evidence behind a shed, including their marijuana stash. After cleaning the crime scene, defendant and his wife turned themselves in to the police. Officers responding to an unattended vehicle with its engine running independently came upon the bodies of the victims and all of the hidden evidence. Defendant’s wife ultimately admitted to having sold drugs to one of the victims and told detective she believed the victims were there to steal drugs. Eight months after the murders, workers from a trucking company discovered a safe in the trucking company’s yard with drugs and an ID belonging to defendant’s wife. At trial, counsel objected to the admissibility of the drug safe, attempted to proffer the testimony of two witnesses who were robbed by the victims previously, and repeatedly defended himself from attacks by the trial judge.

Holding. (1) No. Here there was ample evidence in the record for the jury to disbelieve defendant’s version of events or conclude that he was not reasonable in his use of deadly force. Evidence of self‑defense was derived solely from defendant’s self‑serving statements to the police. Defendant and his wife were in possession of drugs, their statements were inconsistent on critical facts, and they tried to hide the victim’s bodies and other evidence. The jury was not compelled to accept self‑defense. (2) No. The trial court has great discretion in conducting trial and may provide guidance and management on the presentation of evidence. A short‑tempered judge’s efforts at courtroom administration do not support a claim of judicial bias. However, “as a general rule of thumb, a trial court should refrain from expressing or directing comments or admonishments of this nature to trial counsel in the presence of the jury.” Even if the trial judge acted improperly, it was not prejudicial, the jury only convicted defendant of one of the two murder charges and he only a two‑year sentence on the other. (3) Yes. But not harmful. The State explicitly offered the drug safe to show the defendant was using drugs at the time of the offense. The defendant admitted to using drugs at the time of the offense. This proved nothing, and it was apparently not harmful as the jury acquitted defendant on self‑defense grounds of one of the murders. (4) Yes. But not harmful. Evidence of prior bad acts are not admissible to show character, but a defendant may offer prior violent acts committed by the victim to show the victim was the first aggressor. Because the jury did not have to believe—and apparently rejected—defendant’s self‑serving self‑defense evidence on one of the murders, it could not have been harmful to exclude from the jury’s consideration more independent and non‑self‑serving evidence.

Comment. As it pertains to judicial bias infecting this trial, you know it’s bad when the appellate court essentially says: “this isn’t reversible, but it should be noted that we don’t like it.” Really strong language is the typical remedy in these things.

Cyr v. State, No. 11-19-00041-CR (Tex. App.— Eastland, 2021)

Issue. (1) Is a defendant’s failure to provide medical care, standing alone, a sufficient basis to deny a concurrent causation instruction in an injury to child by omission prosecution? (2) Does a defendant’s failure to provide medical care, standing alone, provide sufficient evidence to support a jury’s verdict in an injury to child by omission prosecution?

Facts. Defendant and her husband had three children. On the incident in question, one of defendant’s children choked defendant’s four‑month‑old child because the baby would not stop crying. Defendant intervened to stop the attack. The next day, the baby had intermittent symptoms such as spasms, flailing, and discoloration. On the advice of her nurse‑mother‑in‑law, defendant gave the baby Tylenol and monitored the situation. Testimony was disputed regarding the reluctance to take the child to the hospital initially, but on day two after the incident defendant and her husband took the child to the hospital in Lubbock. According to medical testimony, the child had suffered a brain injury from violent shaking—not choking. Doctors cited hemorrhaging in the child’s eyes and brain and a subdural hematoma as supporting evidence. At trial, defendant requested and was denied a concurrent causation jury instruction. Defendant argued the choking which occurred was a sufficient independent cause of the child’s injuries and that her conduct in “failing to protect J.D. from Justin or failing to seek reasonable medical care for J.D.” was an insufficient cause.

Holding. (1) No. Texas Penal Code § 6.04 provides that “[a] person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” There is no standard for when causation is clearly sufficient or clearly insufficient, it is “a concept too difficult for lawyers or even philosophers” and is best left for jurors. Citing Westbrook v. State, 697 S.W.2d 791 Tex. App. Dallas, 1985). In an injury to child by omission [by failing to seek medical treatment] it is not sufficient for the State to prove that the defendant failed to provide medical care – the child must suffer serious bodily injury because of the failure. When at least some evidence justifies a defensive instruction, it should be included. Here the State’s expert testified that she had only a 50% confidence level that injuries could have been mitigated with quicker action by the defendant. The denial of a concurrent causation instruction was erroneous, and it resulted in harm. (2) Yes, at least here it did. At least some evidence supports the conclusion that defendant’s failure to act promptly could have resulted in bodily injury.

12th District Tyler

The Twelfth District Court of Appeals in Tyler did not hand down any significant or published opinions since the last Significant Decisions Report.

13th District Corpus Christi/ Edinburg

The Thirteenth District Court of Appeals in Corpus Christi/Edinburg did not hand down any significant or published opinions since the last Significant Decisions Report.

14th District Houston

Alfaro v. State, No. 14-19-00143-CR (Tex. App.— Houston [14th Dist.], 2021)

Issue. When the State shows that a defendant directed a single drug transaction involving two middlemen and followed that transaction with an offer to sell directly to the buyer, has the State sufficiently shown a continuing course of criminal activity required to sustain a verdict for engaging in organized criminal activity (“EOCA”)?

Facts. This is essentially a drug conspiracy prosecuted in state court as EOCA. Middleman 1 set Undercover up with Weak Heroin Man 1. Undercover wanted stronger heroin. Middleman 1 identified the defendant as a person who could get stronger heroin. Middleman 1 had difficulty getting a hold of defendant. Eventually Middleman 1 set up a transaction for stronger heroin involving Middleman 2. Following that transaction, Middleman 2 was arrested. Middleman 1 provided defendant’s phone number to Undercover who then began reaching out to defendant directly. Defendant indicated that one of his unspecified middlemen had been arrested recently and he offered to sell to Undercover directly.

Holding. No. “A defendant commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination, he commits or conspires to commit one or more of the enumerated offenses, including delivery of a controlled substance.” EOCA involves more than the intent to commit an enumerated offense, a plan to commit a single act, or proof of working jointly to commit the crime—it requires continuity.” “Proof of an intent to participate in a criminal combination must extend beyond a single criminal episode, ad hoc effort, or goal, regardless of whether multiple laws were broken within the confines of that episode or effort.” The evidence must establish that the group intended to continue engaging in illegality over a period of time. The fact that Middleman 2 was arrested following the transaction and defendant identified one of his middlemen being arrested following a transaction provides some evidence to support the inference that defendant directed the transaction on this single occasion. But this is a single instance, not an ongoing effort or episode. Defendant’s offer to sell directly in a second transaction did not shed light on an ongoing scheme among three co‑conspirators.

Comment. Save this case. It is about as close as it gets to the line between EOCA and not EOCA.

Jackson v. State, No. 14-19-00168-CR (Tex. App.— Houston [14th Dist.] 2021)

Issue. (1) Does a defendant have standing to challenge law enforcement entry onto the curtilage of a home (where he parked his vehicle) without a showing of some connection to the home? (2) Does the automobile exception to the Fourth Amendment (searches of vehicles upon probable cause alone) apply when a defendant can show the absence of exigent circumstances?

Facts. Defendant was accused of participating with others in robbing a pawn shop. The pawn shop had previously installed GPS on their valuable jewelry and officers were able to quickly determine the location of the suspects. At that suspect’s location, two vehicles matching those seen on surveillance were parked in the driveway. When one officer looked inside of Appellant’s SUV, he saw a black trash bag, clothing, and a weapon. Video evidence showed the suspects had used these items during the robbery. The officer retrieved the evidence from the car.

Holding. (1) No. A defendant has the burden of establishing standing (a legitimate expectation of privacy). To evaluate standing, a court considers “a non‑exhaustive list of factors, including whether (1) the defendant had a property or possessory interest in the place invaded; (2) he was legitimately in the place invaded; (3) he had complete dominion or control and a right to exclude others; (4) before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent with historical notions of privacy.” Defendant did not present any evidence or argument pertaining to these factors. (2) No. The automobile exception to the warrant requirement only requires the existence of probable cause, the non‑existence of an emergency or exigency is immaterial.

In re Pena, No. 14-20-00735-CR (Tex. App.—Houston [14th Dist.], 2021)

Issue. Does a trial court have a non‑discretionary duty to furnish an indigent defendant with a free transcript to prepare a writ of habeas corpus?

Holding. No. “Indigent defendants do not have the right to a free record for collateral attacks on their convictions.”

Dissent (Bourliot, J.) In other cases where the court lacks a proper mandamus record, it notifies the party and provides an opportunity to cure the defect. “This court should treat similarly situated parties the same way.”

Comment. The penniless defendant who cannot afford a habeas record must request a free one. When that free record is denied, the penniless defendant must file a mandamus. But the penniless defendant who could not afford the habeas record must obtain a mandamus record if the penniless defendant hopes for an appellate court to grant relief. How does the penniless, recordless, lawyerless defendant obtain a trial court record for mandamus review? Perhaps this is a question the board of law examiners could use to force lawyers‑to‑be to grapple with flaws in the system in which they seek admission to practice.

Kyle Therrian
Kyle Therrian
Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

Kyle’s practice has always been criminal defense. In McKinney, where he has practiced for the past 10 years, he represents individuals in all aspects of criminal accusations, including dozens of appeals before the various Courts of Appeal and Court of Criminal Appeals. He enjoys being a resource to his colleagues and, as he describes it, “nerding out on the law.” He is an active member and leader in TCDLA. In addition to his new role as Significant Decisions Report Editor, Kyle serves as Vice Chair to Texas Criminal Defense Lawyers Education Institute, Vice Chair on the COVID-19 Taskforce, is a long-time member of the Amicus committee, and a regular lecturer as part of the Criminal Defense Lawyers Project.

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